The Most Efficient Way to Litigate a Dispute Between Business Partners with Axes to Grind: Partnership Accountings

by Christine M. Ho

Page 22

Not unlike a marital divorce, litigation between quarreling business partners can quickly deteriorate into trivial battles involving collateral personal issues. The petty tenor of this type of business litigation is understandable given the background of the parties. Business partners are often lifelong friends. They have voluntarily chosen to dedicate their time and resources to their relationship. Typically, they have come to closely trust and rely on each other. A betrayal among associates of this caliber can even be more traumatic than a betrayal among family members. As a result, litigation between business partners is often rife with arguments over minor issues of seemingly little financial or legal consequence. It can quickly become both very expensive and highly counterproductive. Fortunately, there is an alternative path — instead of litigating over each minor issue, a spurned partner may seek to obtain an accounting as to the entire business relationship.

What is an Accounting? Under Florida law, an accounting is a cause of action in which a party requests an equitable settlement of claims and liabilities arising out of its relationship with another party.1 Discussing the usefulness of an accounting cause of action, the Florida Supreme Court observed, “[t]he variety of its uses and possible applications is practically unlimited; it can be adapted to all circumstances and relations in which an account is necessary for the settlement of claims and liabilities, and for the doing of full justice to the litigant parties.”2 In short, an accounting allows a court to “balance the equities, adjust the accounts of the parties, and render complete justice between them.”3

To be entitled to an equitable accounting, a plaintiff must bring an action that arises out of either 1) a confidential or fiduciary relationship, or 2) extensive or complicated transactions.4 The most common equitable accounting action stems from lawsuits concerning partnership disputes. Under the Uniform Partnership Act, an accounting is defined as a “statement of receipts and disbursements which [shows] . . . all of the detailed financial transactions of the business including a listing of the original contributions and current assets and liabilities of the partnership.”5 A partnership accounting has also been defined as “a comprehensive investigation of transactions involving the various partners and an adjudication of their relative rights.”6 In short, an accounting claim is often the most efficient way to resolve a partnership dispute involving numerous issues among bickering former friends. This article focuses particularly on accountings involving partnerships. Accountings that concern other entities or relationships are not addressed. With respect to partnership accountings, we will examine the litigation process from drafting pleadings, the likelihood of obtaining summary judgment, the limitations on discovery, appellate issues, and the recovery of attorneys’ fees.

Accounting: A Two-step Process In an action for accounting, two triable issues exist: 1) the entitlement to an accounting, and 2) the accounting itself.7 The proceedings are usually bifurcated. Before determining the second issue, the first issue must be resolved in favor of the plaintiff.8 In other words, the court must determine the plaintiff is entitled to an accounting before it will turn to the accounting itself.9 For ease of reference, the first triable issue that involves showing entitlement to the accounting will be referred to as “phase one,” and the accounting itself will be “phase two.”

Litigation during phase one concerns the overall relationship of the parties. At this point, the litigation is focused on the “forest” rather than the “trees.” If the parties move past phase one, they enter phase two, during which the “trees” will be counted and cataloged by addressing the individual allegations of wrongdoing claimed by each side. This bifurcated process allows the court to determine whether an accounting is appropriate before having the parties incur the fees and costs associated with an actual accounting. As a result, if the plaintiff is not able to prove its entitlement to an accounting at the conclusion of phase one, then the parties never enter into phase two. This bifurcation tends to limit the attorneys’ fees and costs incurred by both the parties.

Phase One – Entitlement to a Partnership Accounting Phase one becomes rather straightforward if the parties agree they were members of a partnership. A partner is automatically entitled to an accounting as to the partnership’s affairs under both common law and statutory law. Under common law, as a result of the fiduciary relationship inherent in a partnership, a plaintiff only has to demonstrate that it is a partner of a partnership in order to show entitlement to an accounting:

Every partner is entitled to an accounting of partnership affairs in a proper case. A retiring partner is entitled to an accounting of his interest in the partnership . . . . [I]t is the normal duty of a partner to render an accounting to his copartners and a performance of this duty can be enforced by appropriate judicial proceedings. The fiduciary relation inherent in partnerships is sufficient to invoke the jurisdiction of equity for the purpose of compelling an accounting.10

Moreover, a partner is entitled to an accounting regardless of whether the partnership is only of short duration and regardless of whether the partnership is financially complicated.11

Statutory law also provides a limited right to a partnership accounting. Under F.S. §620.8807, a partner is entitled to “a settlement of all partnership accounts upon winding up the partnership business.”12 In addition, under F.S. §620.8403, a partnership “shall provide partners and their agents and attorneys access to the books and records of the partnership.”13 Section 620.8807 only allows for an accounting upon winding up of the partnership. Access to books and records under §620.8403 does not include a determination of all disputes necessary to ascertain who owes who what. Plaintiffs, therefore, typically rely on their common law right to an accounting of the partnership.

During phase one of a partnership accounting action, the primary issues are typically whether a party is a partner of the partnership or whether a partnership exists. In fact, these two questions have been the subjects at issue in most partnership accounting litigation in Florida.14

Surviving a Motion to Dismiss in Phase One In order to survive a motion to dismiss in phase one of a partnership accounting, the plaintiff must allege 1) ultimate facts to show its entitlement to an accounting of the partnership, and 2) that the remedy at law is inadequate. First, a complaint must present “triable issues bearing on the right, basis or necessity for an accounting.”15 A complaint that fails to plead the basis of the alleged entitlement to an accounting may be dismissed.16 In partnership accountings, a plaintiff must generally plead that it is a member of a partnership and that its presuit request for an accounting of that partnership has been rejected.

When pleading the existence of a partnership, it is useful to refer to the Revised Uniform Partnership Act, which Florida has adopted at F.S. Ch. 620. Pursuant to F.S. §620.8202, a partnership is formed as soon as two or more people associate to carry on as co-owners of a business for profit.17 There is no requirement that the parties subjectively intend to form a partnership, only that they intend to engage in business as co-owners.18

Often the parties’ intent is unstated, and the court must consider other factors which may serve as indicators of their intent to form a partnership. For example, sharing of profits and losses raises the presumption of a partnership.19 Other factors courts have considered include the right of the parties to share in the management of the business; the right of each party to act on behalf of the other party; and entering into leaseholds or the purchase of personalty or insurance in the name of either party.20 Courts have explained that “[i]t is not necessary that all of these indications must exist or even that the term ‘partnership’ or ‘partner’ be used by the parties in their business dealings so long as the acts and conduct of the parties indicate an intent to carry on as co-owners a business for profit.”21 However, “[j]oint tenancy, tenancy in common, tenancy by the entireties, joint property, common property, or part ownership does not, by itself establish a partnership, even if the co-owners share profits made by the use of the property.”22 Additionally, sharing gross returns does not by itself establish a partnership. This is true “even if the persons sharing them have a joint or common right or interest in property from which the returns are derived.”23

It is prudent to incorporate allegations concerning as many of these factors as possible when drafting a cause of action seeking a partnership accounting. This best assures that the complaint can withstand a motion to dismiss. In Boyd v. Walker, 251 So. 2d 332, 333 (Fla. 3d DCA 1971), Boyd’s accounting suit alleged that he had entered into an oral partnership with the defendants to engage in the practice of law. Boyd claimed that he had demanded an accounting of the firm’s profits and that the defendants had refused.24 Boyd further alleged the defendants had excluded him from the partnership premises and affairs.25

The trial court dismissed the complaint, but did not state the grounds for its dismissal.26 In urging that the appellate court uphold the dismissal, the defendants cited four reasons why the trial court was justified in dismissing the complaint. First, the defendants argued that Boyd’s interest in the partnership was not equal to the interests of the defendants. Second, the defendants claimed they controlled the policies of the firm under written agreement.27 Third, the defendants contended the complaint did not allege a method of computation of compensation. Lastly, the defendants argued they did not consent to Boyd becoming a partner.28 On review, however, the appellate court found these grounds insufficient justification for dismissal of Boyd’s complaint.29 The court stated that partners are not required to have the same share or interest in the partnership, particularly because Boyd had alleged that the parties entered into an oral contract to create the partnership. In essence, the court held that as long as Boyd was a partner, he was entitled to an accounting regardless of the other issues the defendants raised. Accordingly, the court found that Boyd had sufficiently pled ultimate facts to show his entitlement to an accounting. The defendants were required to file responsive pleadings.30

The dissent in Boyd is also instructive. In arguing that Boyd’s complaint was insufficiently plead, Judge Hendry reasoned:

[A] mere allegation of the existence of a partnership is purely a legal conclusion. The presence of a legal conclusion in a pleading is not fatal. Rather, the absence of ultimate facts so as to inform the defendant of the nature of the legal cause of action against him renders the pleading defective.31

Judge Hendry stated that Boyd’s complaint was “fatally defective as not establishing a partnership.”32 In particular, he noted that Boyd’s complaint did not allege any joint proprietary interest, joint control in the partnership, or agreement among all partners to share the profits and losses. According to the dissent, Boyd had the burden to “aver and prove that there was something due it before it was entitled to an accounting.”33 One lesson to be learned from the dissent in Boyd is that the more facts that can be pled, the more likely an accounting claim will survive a motion to dismiss. As detailed above, a plaintiff should look to the Revised Uniform Partnership Act for the types of factual circumstances that can give rise to a partnership.

Second, in order to survive a motion to dismiss during phase one, a plaintiff must also, in addition to pleading entitlement to an accounting, allege that any remedy at law is not as “full, adequate, and expeditious as it is in equity.”34 In other words, the plaintiff must specifically plead that the remedy at law is inadequate.35 To satisfy this requirement, a plaintiff could allege that “the account is so complicated that it cannot conveniently be taken in an action at law.”36 Adding specific factual allegations to back up that generalization will further bolster the complaint. The question becomes whether the action at law (i.e., a contractual claim) will provide relief that is as “full” or “expeditious” as an accounting in equity.37 If a straightforward contract action will provide the relief requested, then the plaintiff’s request for an accounting may be dismissed.38

In sum, a plaintiff seeking a partnership accounting must plead 1) it is part of a partnership that has failed to account to plaintiff, and 2) the remedy at law is inadequate. The failure to adequately plead either of these elements in a partnership accounting lawsuit can result in dismissal of the action.

Surviving a Motion for Summary Judgment in Phase One Whether a partnership exists or whether a party is a partner are questions of fact to be determined by the trier of fact.39 Prevailing on a defense motion for summary judgment on the basis that a partnership does not exist or a party is not a part of the partnership is difficult in phase one of a partnership accounting action.40 A motion for summary judgment could more likely succeed, however, on the basis that the remedy at law is adequate and that no partnership accounting is warranted.41For this reason, it is important for the plaintiff to carefully frame its allegations regarding the adequacy of a remedy at law.

Proving the Existence of a Partnership in Phase One During phase one of a partnership accounting, the plaintiff has the burden of showing it entered into a partnership with the defendant. Three seminal Florida Supreme Court cases illustrate the level of proof required of a plaintiff to demonstrate the existence of a partnership in order to obtain an accounting.

The first case that focuses on this burden is Nims v. Nims, 1 So. 527 (Fla. 1887). In Nims, a son brought suit against his father for an accounting of an alleged partnership.42 The father responded that no partnership existed between the parties, claiming that he had merely hired his son to work as an employee in the lumber mill. The evidence was slim. The court noted that the parties carried on “for a number of years, a complicated partnership business in [a] loose manner, preserving no daily, weekly, or monthly record, or written entry of how much lumber was cut by the mill, and only a loosely-kept book of the amount of cash realized from sales of lumber.”43 In characterizing the burden of proof, the Florida Supreme Court stated:

It is incumbent on the complainant to prove his case, and by such testimony as will furnish the court with reliable evidence upon which to ground an intelligible decree. The evidence of complainant is of a very vague and unsatisfactory character, not founded on any account of lumber sawed by the mill, but by how much two wagons most of the time, and at sometimes a greater number, hauled for seven years and a half, deducting for holidays, and one day in each month for bad weather. If this evidence was not contradicted by answer and witnesses, as it is, we do not see how we could conscientiously make it the basis of a decree.44

The court nevertheless went on to note that the defendant’s data was “equally as unsatisfactory.”45 The court affirmed, deferring to the trial court’s finding that a partnership existed between the parties and that the son was entitled to an accounting and half of the proceeds from the sale of the partnership.46 Due to the equitable nature of partnership accountings, appellate courts will typically give deference to a trial court’s factual findings.

Second, in Hill v. Beacham, 85 So. 147, 147-48 (Fla. 1920), Hill brought suit against Beacham alleging that he had entered into an oral partnership with Beacham to buy and cultivate orange groves. Hill claimed that in reliance on the partnership agreement, he worked at the orange groves for years without any compensation.47 Hill later discovered that Beacham had purchased the property at issue in the name of Beacham’s wife. As a result, Hill brought suit against Beacham seeking an accounting of the partnership.48 The trial court noted that Hill, the plaintiff, had the burden to prove that a partnership existed.49 Because the partnership was oral, the court stated that the evidence had to be “so clear, strong, and unequivocal as to remove from the mind of the chancellor every reasonable doubt as to the existence of the [partnership].”50 Given the paucity of evidence, Hill was not able to prove the existence of a partnership, and the trial court had ruled in favor of Beacham. Applying this heavy burden, the Florida Supreme Court affirmed the trial court stating that there was “insufficient evidence” to show the existence of a partnership and hence the trial court did not err.51

Finally, in Nahmod v. Nelson, 3 So. 2d 162 (Fla. 1941), the Supreme Court again addressed the question of partnership existence. Nahmod had entered into a written agreement with Nelson, in which the parties agreed that a partnership would be formed if Nahmod paid Nelson $2,000.52 Nahmod admittedly never paid the $2,000. He claimed that at a later time, however, the parties had entered an oral agreement to become partners. Nahmod brought suit for appointment of a receiver, an accounting, and a partition.53 The trial court “only considered the question of the existence of a partnership and [did] not [give] consideration to an accounting.”54 The trial court had held that no partnership existed, and Nahmod appealed. The Florida Supreme Court found that the question of whether an oral partnership existed was one of fact, which could only be overturned if the decree was clearly erroneous.55 Finding the trial court’s ruling not to be “clearly erroneous,” the Supreme Court affirmed. The Supreme Court observed that the defendant’s testimony supported the contention that there was no partnership and that Nahmod’s own testimony was “at best only a vague, uncertain and indefinite agreement of partnership.”56 Therefore, Nahmod failed to carry his burden of proof in establishing a partnership.

These three cases demonstrate the great discretion a trial court has in making its factual finding as to whether a partnership existed between the parties. This finding is crucial in an accounting claim. Parties seeking an accounting must, therefore, take care to convince the court by alleging and proving any and all factual circumstances that suggest the formation of a legal partnership as described under the Revised Uniform Partnership Act.

Limited Discovery During Phase One The general rule is that during phase one of an accounting action, discovery is limited to matters relevant to establishing entitlement to the accounting. Only after a plaintiff proves entitlement to an accounting and begins phase two of the lawsuit does discovery proceed as to issues necessary to resolve the actual accounting itself.57 This limitation on discovery serves “the laudable purpose of obviating the need for the opposing party to produce his records of account until it is determined that he is obligated to do so.”58 Moreover, because the parties are generally not allowed to conduct discovery concerning the underlying accounting until after phase one, the parties are spared those associated discovery costs until it is determined that the plaintiff is actually entitled to an accounting.

This initial limitation on discovery in an accounting suit is not absolute. The scope of discovery typically turns on whether there are other concurrent claims or issues in the suit that justify financial discovery.59 In Florida Gaming Corporation of Delaware v. American Jai-Alai, Inc., 673 So. 2d 523, 524 (Fla. 4th DCA 1996), the Fourth District Court of Appeal stated, “[e]xamination of the history of the rule calls into question its mechanical application in a modern lawsuit.” The court noted that after the merger of law and equity courts, a request for an accounting may be subsumed within other issues and that all of these issues are typically tried at once.60 In determining whether financial discovery concerns the other issues in the lawsuit, Florida courts have looked at “whether the discovery is relevant to the issue of entitlement, the other related causes of action or other disputed factual issues based on the record before us or from the nature of the documents requested.”61 Accordingly, if a lawsuit contains an accounting claim and other concurrent claims, then it can be expected that the parties may disagree over the scope of discovery. As a result, even though the parties are theoretically spared the costs of some discovery during phase one, the parties’ dispute over the scope of discovery may well eliminate any such savings.

Appealing a Trial Court’s Order as to Entitlement to an Accounting A trial court’s order finding whether a party is entitled to an accounting in phase one is not a final judgment and is not appealable as a nonfinal order.62 Even once the order becomes appealable, it can be difficult to obtain a reversal of a trial court’s finding concerning the existence of a partnership.63 Because accountings are equitable in nature, the findings of a trial court in an accounting suit come “clothed with a presumption of correctness.”64 “[W]here there is substantial competent evidence to sustain the actions of the trial court, the appellate court cannot substitute its opinion on the evidence but rather must indulge every fact and inference in support of the trial court’s judgment.”65

Reversals do occur. In Puritz v. Rosen, 442 So. 2d 278, 280 (Fla. 4th DCA 1983), the Fourth District rejected the trial court’s finding that there was no partnership between the parties, stating:

We are aware that it is the function of the trial court to evaluate and weigh the testimony and other evidence to arrive at findings of fact. It is not our function to reweigh the evidence nor to substitute our judgment for that of the trial court. However, we must look to whether the judgment of the trial court is supported by competent evidence. Applying this test, we hold that the findings of the trial court were clearly against the manifest weight of the evidence.

The Fourth District accordingly reversed the trial court and ordered that the plaintiff was entitled to an accounting.66 Due to the deference afforded a trial court in these equitable actions, success on appeal is nevertheless unlikely. A party may prevail on an appeal of a trial court’s finding of no entitlement to an accounting under phase one only where competent evidence does not support that finding.

Phase Two – The Actual Accounting Phase two of an accounting suit is when the “trees” in the “forest” are examined to determine who owes whom, what is owed, or how much is owed. Traditionally, an action for a partnership accounting encompasses “all claims, counterclaims and set offs between and among the partners involving matters related to the partnership . . . . ”67 This becomes the time to raise questions concerning specific transactions and to resolve all disputes that may have arisen as a result of the partnership.

During phase two of the partnership accounting, a court must conduct an accounting “in accordance with generally accepted accounting practices.”68 The trial court may conduct the accounting on its own or appoint a special master to do so.69 Typically, a special master, such as a CPA, is appointed. The special master may review the books and records of the partnership and have the parties submit to oral examination.70 Although a special master may, and often does, take testimony or evidence during the actual accounting, there is no requirement to do so.71 In short, the trial court and the special master are accorded great discretion in deciding how to conduct a partnership accounting.

Recovering Attorneys’ Fees Under the American rule, a party must bear its own attorneys’ fees, absent an independent statutory or contractual basis for shifting fees.72 Partnership accountings are a common law exception to this general rule, and attorneys’ fees in partnership accountings may, therefore, shift even absent a statutory or contractual basis.73 Accountings that do not involve partnerships, however, are not subject to this exception, and fee shifting is not justified merely because an accounting action has been sought. In partnership accountings, however, the potential for recovery of attorneys’ fees provides a very significant benefit to a partner who has been unfairly excluded from the partnership’s affairs. The bifurcation process and the limited discovery during phase one already seek to reduce the amount of fees incurred by the parties. Once a plaintiff prevails in proving its entitlement to an accounting, a presumption arises that it should be awarded fees regardless of the amounts actually found due, if any, during phase two of the accounting. Partnership accountings can, thus, be quite a cost effective way to litigate disputes between partners.

A trial court has broad discretion in awarding attorneys’ fees in both phases of a partnership accounting.74 In A.J. Richey Corporation v. Garvey, 182 So. 216 (Fla. 1938), the Florida Supreme Court explained the rationale for awarding attorneys’ fees in a partnership accounting lawsuit: “The general rule is that costs including attorney’s fees will be allowed from the estate in cases where trustees or cestui que trusts represent all the beneficiaries and bring a fund in court for distribution or in cases of partnership accounting….”75 The court accordingly held that because one of the partners “was forced to bring suit for dissolution and accounting and being so, he was entitled to have his attorney paid from [the other partner’s] part of the proceeds.”76

The costs in a suit for partnership accounting, including expert fees and attorneys’ fees, are generally payable out of the partnership.77 If the partnership estate is insufficient, then the partners, in proportion to their respective partnership shares, are liable for such costs and fees.78 Furthermore, a court is likely to award “the entire costs to one or some of the partners, either as a sort of punishment for misconduct, or because he has needlessly forced or prolonged the litigation, or because for some other reason the court concludes justice demands it.”79 Accordingly, a party may be able to recover its attorneys’ fees and costs from the partnership or other partners. Of course, a party can only recover reasonable attorneys’ fees that are supported by expert testimony.80

A party must actually seek a partnership dissolution or accounting in order to recover its attorneys’ fees. For example, if a plaintiff files suit seeking a mandatory injunction to keep the partnership assets intact, or to gain greater access to the records or operation of the partnership, and does not expressly seek an accounting of the partnership, then no entitlement to fees exists.81 Another example is if a party seeks an appraisal of the partnership, as opposed to an accounting, then it is not able to recover its attorneys’ fees.82 This comports with the general rule that a party may not recover its attorneys’ fees absent an independent statutory or contractual basis.

A trial court retains great discretion in awarding fees in a partnership accounting. Even if a party does not seek a formal accounting but files suit for failure “to account . . . for partnership funds, assets and property” and the trial court engages in a formal accounting, then the party may be able to recover its attorneys’ fees.83 In addition, when an accounting is held by “the implied consent of the parties,” a party may still be entitled to recover its fees even though it failed to explicitly plead for an accounting of the partnership.84 This range of rulings further demonstrates how the appellate courts give great deference to the trial courts on the issue of awarding fees in partnership accountings.

In contrast, if the trial court determines during phase one of the partnership accounting that the party seeking a partnership accounting is not entitled to an accounting because no partnership exists, then attorneys’ fees do not shift. The party defending against the partnership accounting suit is not necessarily entitled to recover fees if it prevails in phase one by showing that there was no partnership. In Tucker v. Ayres, 336 So. 2d 1224, 1225 (Fla. 1st DCA 1976), the plaintiff had filed suit for a partnership accounting, but unilaterally terminated that action by filing a notice of dismissal without prejudice. The trial court awarded attorneys’ fees to the defendant, and the plaintiff appealed. The First District Court of Appeal acknowledged the rationale for awarding fees in a partnership accounting is based on the fact that “a claimant and his attorney have brought a fund into court for distribution.”85 The First District reasoned that as a result of the voluntary dismissal, “the litigation was aborted and no fund was created.”86 The court accordingly reversed the trial court’s award of attorneys’ fees to the defendant.87 The holding in Tucker can be easily understood in the context of the rationale originally set forth by the Florida Supreme Court in A.J. Richey Corporation — i.e., if a defending party prevails by showing that no partnership exists, then there is no partnership fund from which attorneys’ fees can be recovered.

Conclusion A partnership accounting can be an exceptionally useful tool for limiting the number of issues in a dispute between former business partners who have axes to grind and personal animosity. No matter how many issues may exist, the court, or a special master, can make an ultimate ruling about who owes whom, what is owed, or how much is owed. Because initial discovery is generally limited and entitlement is decided prior to the actual accounting itself, litigating an accounting claim can be less costly to the parties than alternative causes of action. Finally, for the plaintiff who seeks a partnership accounting, there is the significant benefit of allowing attorneys’ fees to shift even absent a statutory or contractual basis. That can be a powerful disincentive to recalcitrant partners who refuse to disclose the partnership’s affairs. A partnership accounting can, thus, be an efficient litigation tool since it is intended to limit the amount of fees incurred and allows for the shifting of attorneys’ fees.

1 Although accountings may occur in many legal contexts, such as family law accountings, trust accountings, etc., this article focuses on partnership accountings.

16E.g., Mazza v. Rose Media Group, Inc., 937 So. 2d 307, 309-10 (Fla. 4th D.C.A. 2006) (finding that dismissal of the complaint as to specific entities was proper since the plaintiffs failed to allege that any of those entities were partners with the plaintiffs or had any contractual relationship that would serve as the basis for an accounting).

38E.g., Bernardele v. Bonorino, 608 F. Supp. 2d 1313, 1329 (S.D. Fla. 2009) (finding that the plaintiffs failed to state a claim for accounting because the plaintiffs “failed to show why the legal remedy, in the form of damages in the amount of commissions owed, would be inadequate to make [p]laintiffs whole.”).

66Puritz, 442 So. 2d at 280; see also Southern Indus. Tire, Inc. v. Chicago Indus. Tire, Inc., 541 So. 2d 790, 791 (Fla. 4th D.C.A. 1990) (finding it was reversible error for a trial court to order an accounting when the record was devoid of any pleadings or evidence to support such relief); Yarborough v. Kilbee, 307 So. 2d 223, 227 (Fla. 4th D.C.A. 1975) (finding that the trial court “misconstrued the legal effect of the evidence” concerning the ownership of the partnership).

71Id. at 856-57 (finding that, although a special master is not required to take testimony or evidence, the trial court erred in resubmitting the issue of depreciation to the special master after he made an arbitrary finding as to the depreciation figure).